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September 27, 2010

A Study Analyzes Consumer Protection Laws

by Sam Savage

There is a growing need to standardize the laws regulating consumer protection. This is one of the main conclusions of a research project at Universidad Carlos III de Madrid (UC3M), which analyzes consumer protection in Spain from the legal perspective.

The idea behind this research arose because of the huge disparity in existing laws regulating the area of consumer protection, which made it necessary, according to the researchers, to carry out a systematic study to develop a "general report" which would gather the common principles and regulations regarding the different laws governing consumer protection. During the time this research study was underway, the Texto Refundido de la Ley General para la Defensa de los Consumidores y Usuarios (Consolidated Text of General Law of Consumer Protection) (LGDCU) was published; however "said legal text has not solved the existing problems because it leaves out important special laws and it does not contain a coherent regulation but rather it contains, on the contrary, inexplicable contradictions", the head of the study, Jorge Caffarena Laporta, Full Professor in the UC3M Department of Private Law, explained.

With respect to the existing regulation, in spite of the shortcomings brought to light by these researchers, such as not being systematic and containing contradictions and rambling texts, its consumer protection nature cannot be denied. "Notwithstanding", Professor Caffarena continued, "the aforementioned defects provoke confusion and insecurity as to the extent of consumer rights, although the problem probably resides in their practice". And if companies violate consumers' rights, there are not effective instruments which allow the consumer to pursue a successful legal claim. "Given the limited number of most consumer operations and the costs and delays involved in a judicial process, the consumer many times is not interested in making a legal claim against the company involved", he went on to explain. In short, increased development of consumer arbitration is essential.

The Consumer Code

In other countries such as France or Italy a Consumer Code has already been drawn up. "In Spain it would be desirable", Caffarena indicated, "to draw such a code up or to integrate the general norms of consumer protection into the Civil Code". The objective of this line of research precisely seeks to propose the bases for drawing up a text that takes into account the existing regulations, in order to standardize and to make possible a reasonable incorporation into natural law of the EU common guidelines in accordance with a certain system of principles and institutions. "The attempt of the legislator to make the area of consumer protection homogeneous with the publication of the LGDCU Consolidated Text brings to light the fact that it was a premature operation, not well-thought out, and one which would have required more prolonged legal reflection because it was limited to juxtaposing sectoral legislation in this area, and actually complicated the panorama in certain cases", Caffarena concluded.

The researchers have elaborated a set of recommendations regarding the development of a Consumer Code. On one hand, they pointed out that it would have to begin with characterizing the figure of the "consumer" given that consumer protection laws do no always refer to the same recipient. And on the other hand, uniform terminology must be employed since different technical terms (settlement, revoking or rescinding, etc.) are not always used with the same meaning. In addition, the researchers clarified that the institutions involved would have to be regulated according to the same criteria or that differences which exist between some cases and others would have to be justified, thereby eliminating the incoherencies stemming from the sectorization of the treatment of problems which has, for quite some time, caused the overall situation of this legislative branch to be unsustainable, as the legislator himself has recognized.

The members of the UC3M research group who have carried out this national project entitled "Hacia un C³digo del Consumidor" (Towards a Consumer Code), have analyzed the case of the most relevant institutions in the area of consumer protection in fields such as consumer characterization, advertising and binding commitment, the form of contract, obligations of information, and the right to voluntarily break a contract, among others. Nevertheless, they remarked that they have other areas of research underway in related areas, such as unfair conditions imposed by business owners or the lack of conformity and guarantees in the sale of goods to consumers.